Wilke v. Chicago Great Western Railroad Company
| Decision Date | 10 November 1933 |
| Docket Number | 29,507 |
| Citation | 251 N.W. 11,190 Minn. 89 |
| Parties | W. A. WILKE v. CHICAGO GREAT WESTERN RAILROAD COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Dodge county by the representative of the estate of Arthur Paape, an employe of defendant, to recover damages for his death. The case was tried before Fred W. Senn, Judge, and a jury. At the close of plaintiff's case the court granted defendant's motion for a dismissal, and plaintiff appealed from the judgment entered pursuant thereto. Affirmed.
Master and servant -- duty of master to furnish care to sick or injured employe.
1. When in the course of the employment the servant through sudden illness or accident becomes helpless and is in peril of life or serious injury unless immediate care is given, it is the duty of the master when apprised of the servant's condition to furnish proper care. The duty does not arise until knowledge of the servant's condition and peril is brought home to the master.
Master and servant -- duty of master to furnish care to sick or injured employe -- evidence.
2. The evidence wholly failed to prove that defendant, its agents or servants, had knowledge of the fatal illness of plaintiff's intestate until he was beyond human aid.
Leach & Leach, for appellant.
Stearns Stone & Mackey, for respondent.
Plaintiff appeals from the judgment of dismissal.
The action was brought to recover for the wrongful death of plaintiff's intestate, Arthur Paape, an employe of defendant, which death occurred on July 11, 1930. The complaint alleges that on July 11, 1930, defendant, in the operation of its gravel pit near Randolph, Minnesota, employed Arthur Paape to move its track therein; that the day was excessively hot; that because of its depressed location the heat was exceedingly oppressive in the pit where Paape was required to work; that because of the heat Paape became sick and helpless and so remained for a considerable time in the presence and to the knowledge of defendant, its agents, and servants, until he died on said date, without receiving any aid or attention; that defendant and its agents and servants well knew the danger attending one required to work in that place during such heat; but that Paape did not know or appreciate such danger and that, notwithstanding, defendant negligently required him so to work knowing that he might be overcome by heat, and negligently failed to inform him of the danger; and negligently failed to provide any medical attendance or care for a person who might succumb to heat when required to work at the gravel pit on such a hot day.
We may concede that the complaint states a cause of action for wilful failure to care for a servant who while engaged in his work has so succumbed to a heat attack or other illness that he is unable to care for himself. There need be no relation of master and servant to cast the duty upon one to care for a helpless fellow being when in peril of life or limb. Depue v. Flatau, 100 Minn. 299, 303, 111 N.W. 1, 2, 8 L.R.A.(N.S.) 485, where it is said:
"That whenever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself, and with which he is confronted, to avoid such danger; and a negligent failure to perform the duty renders him liable for the consequences of his neglect."
The duty of a master to his servant when helpless and in imminent peril cannot be less. But a careful scrutiny of the evidence makes clear that plaintiff wholly failed to prove the cause of action alleged or any cause of action.
The evidence is that on July 10 and 11, 1930, the weather was very hot, more so on the 10th than the 11th. Paape had worked for defendant as a section-hand for about nine years, being at the time of his death foreman for a crew of six or seven men. This crew, with other section crews, had their headquarters at South St. Paul, but defendant carried them down to this gravel pit in the mornings and brought them back evenings. On the 10th Paape worked in the pit, directing his crew. He came down with the crew the next morning and was seen at different places in the pit in the forenoon, but the witnesses who saw him did not notice that he worked. He was either sitting, standing, or walking about.
Mr. Wall, in charge of the entire operations, was upon a returning gravel train that passed through the pit at about 1:20 p.m. very slowly so that he might observe how the work progressed and give such orders as might be needed, saw Paape, and called out to him as the train passed "to be sure and get that frog in at the west end of the pit" when the work train returned. Wall testified that Paape threw up his hand, and Wall took that to be a sign that Paape understood waht Wall desired and that his directions would be carried out. Soon thereafter Paape was seen walking south out of the pit, cross an east and west road running parallel to the pit, apparently going to a spring some 20 feet below the road.
About 2 p.m. a farmer driving in his wagon easterly upon said road saw Paape come up the bank from the spring and walk ahead of the team some rods, then crawl under a fence near which was a tree. When he reached the shade of the tree he apparently fell down on his face. The farmer testified that as Paape walked he appeared to stagger or walk sideways. The farmer did not stop, but, as he passed a couple of men standing on a hand-car in the pit about 100 feet from him and about 150 feet from Paape, he called to them "they better come over there and take care of that man because he was pretty near all in." He testified that he did not know whether they heard him or not. He said they looked towards him, but there is no evidence that in their position they could see Paape south of the road under the tree. The hand-car was in the pit, which the testimony shows was some 10 feet below the surface. The farmer went on and did not pay any attention to Paape, nor did he turn his head to see whether the men on the hand-car gave any indication that they understood the situation or took any step to care for Paape.
Another witness, a carpenter residing at Randolph, who was repairing some cars in the pit that day, said he saw Paape in the pit at various places apparently working; that he did not see him leave the pit; but that around two...
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